Why John Yoo’s Attempts to “Negate” the Torturers’ Intent Fails

In my last post, I showed how the Bybee Two memo, purporting to find each of ten torture techniques used with Abu Zubaydah legal, was a very specific response to John Yoo’s July 13 memo to John Rizzo. The July 13 memo had basically said, “if you consult with experts that tell you techniques won’t cause prolonged mental harm, then it will “negate” any intent you had to use specific acts listed in the torture statute to cause mental pain and suffering.” So, in response, CIA barraged John Yoo and Jennifer Koester with information purportedly showing that waterboarding and sleep deprivation did not cause prolonged mental harm, Yoo and Koester threw it into a memo, and said that as a result those techniques weren’t torture.

But there’s a problem with the gimmick (even aside from the offensiveness of the premise): the timing.

The memo itself bears evidence that the CIA had already used at least some of these techniques by the time they asked for the opinion. And the details we now know surrounding the process make it clear that they didn’t even consult the experts until after they used some of the techniques. Indeed, it appears that one of the studies they claim to have “consulted” was actually an experiment they conducted on Abu Zubaydah himself. That is, they’re citing their own “study” on Abu Zubaydah as their expert advice to prove they didn’t have the intent of causing him prolong mental suffering.

The torturers had already used the techniques before getting approval

Now, there are many reasons to suspect that the torturers used waterboarding (and perhaps mock burial) before August 1. But I can’t prove that. But their single-minded concern about mental suffering–and not physical suffering–dating back at least to July 10, 2002 strongly suggests that they may have already done something to cause AZ prolonged mental suffering. Otherwise, what would explain the imbalance in their focus?

But there are several details in the Bybee Two memo itself that show they had already used some of the techniques on AZ.

Take, for example, my observation of the other day: a draft of Abu Zubaydah’s psychological evaluation noted that “he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial ‘hard’ dislocation of expectation intervention following session 63.” [my emphasis] Well, it turns out we have seen that term, “dislocation of expectation” before … in the Bybee Two memo, where Yoo describes the whole point of the ten torture techniques!

As part of this increased pressure phase, Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began. This phase will likely last no more than several days but could last up to thirty days. In this phase, you would like to employ ten techniques that you believe will dislocate his expectation regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. [my emphasis]

They knew at this point that AZ had already been subjected to such a condition, even while they were purportedly approving the ten techniques in the future.

More damning, though, are the admissions that they had already subjected him to sleep deprivation. There’s the admission they had subjected him to sleep deprivation in the description of the technique itself.

You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

Then there’s a more interesting reference, because it shows up in the section on page 8 that regurgitates his psychological evaluation.

During detention, Zubadaydah has manged his mood, remaining at most points “circumspect, calm, controlled, and deliberate.” He has maintained his demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal (which you think was possibly fear). [my emphasis]

Now, this entire larger section repeats back the content of the psychological evaluation (though the use of the word “confrontational” shows they were citing from the later draft of it), almost all in the same order at the paragraph level as it appears in the evaluation. There is nothing in the unredacted document referring to sleep deprivation. But this entire passage otherwise replicates the paragraph spanning pages 3-4 of the evaluation. Which strongly suggests that the redaction also spanning pages 3-4 includes a discussion of both aggressive interrogations and sleep deprivation.

And as an aside, I find it all the more curious that they orally admitted to using sleep deprivation for 72 hours; how does that add to the admission in the psychological evaluation?

In any case, Yoo spends long sections of this memo trying to make the case that CIA consulted experts on sleep deprivation, so that when they use it in the future, they will do so with the confidence that it won’t cause prolonged mental harm. But that doesn’t do anything to “negate” their intent to cause him harm in the past, when they already had used it.

CIA didn’t consult experts until after they used some of these techniques

And, given the other details we know about the memo writing process, we can date when they consulted experts to construct Section II of the Bybee Two memo. For a number of materials cited in there, we know they received the information after July 24. For example, here’s the OPR Report’s description of Jennifer Koester receiving these materials after July 24.

Over the next few days [after July 24], [redacted] sent [Koester] additional information relating to the proposed interrogation, including a psychological assessment of Abu Zubaydah and a report from CIA psychologists asserting that the use of harsh interrogation techniques in SERE training had resulted in no adverse long-term effects.

[Redacted] also provided additional information about the proposed interrogation program to [Koester]. On July 26, 2002, [redacted] sent [Koester] three memoranda the CIA had obtained from the Oepartment of Defense Jomt Personnel Recovery Agency (JPRA) and the United State’s Air Force. The memoranda, dated July 24 and July 25, 2002, were in response to requests for information from the DOD Office of General Counsel about SERE interrogation techniques. The two JPRA memoranda were in response to a request for information about interrogation techniques used against United States prisoners of war, and the techniques used on students in SERE training. The Air Force memorandum was from a psychologist who served in the Air Force’s SERE traing program. The memorandum discussed the psychological effects of SERE training, noting that the waterboard was 100% effective as an interrogation technique, and that the long-term psychological effects of its use were minimal. [my emphasis]

Even without the dates included in the OPR Report, we know from the SASC report that this information wasn’t even requested until this time frame, and it was hurriedly completed in the days before DOD sent it to CIA who sent it on to DOJ. Thus, while we don’t know the dates of the documents included in the large packet of information sent on July 25 which subsequently disappeared from OLC’s SCIF (!), we know that a number of the reports cited in the Bybee Two memo weren’t even written until late July.

And then there’s the psychological evaluation of AZ. While we don’t have the exact report or reports that OLC received, it appears they were still drafting it on July 24 and 25.

As I showed in my last post, Yoo made great stock of the efforts with which CIA did its due diligence to make sure these techniques wouldn’t cause prolonged mental harm, and based on that he said “you do not meet the specific intent necessary” to torture under the torture statute.

Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent necessary to violate Section 2340A.

[snip]

Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubdayah.

But they clearly hadn’t done this due diligence when they used at least some of these techniques. Yoo may think he can use their homework assignment to show that they did not have the specific intent to cause prolonged mental harm on July 26, 2002. But he can’t then claim they didn’t have the specific intent to cause prolonged mental harm in May and June.

They appear to be using their own “study” on Abu Zubaydah as their expertise on sleep deprivation

As I noted in the last post, whereas Yoo cites several actual people in his section on waterboarding (Jerry Ogrisseg is one, plus two people with extensive experience in the SERE program), he doesn’t cite any specific studies in his section on waterboarding.

You have also reviewed the relevant literature and found no empirical data on the effect of these techniques, with the exception of sleep deprivation. With respect to sleep deprivation, you have informed us that it is not uncommon for someone to be deprived of sleep for 72 hours and still perform excellently on visual-spatial motor tasks and short-term memory tests. Although some individuals may experience hallucinations, according to the literature you surveyed, those who experience such psychotic symptoms have almost always had such episodes prior to the sleep deprivation. You have indicated that the studies of lengthy sleep deprivation showed no psychosis, loosening of thoughts, flattening of emotions, delusions, or paranoid ideas. In one case, even after eleven days of deprivation, no psychosis or permanent brain damaged [sic] occurred. In fact, the individual reported feeling almost back to normal after one night’s sleep. Further, based on the experiences with its use in military training (where it is induced for up to 48 hours), you found that rarely, if ever, will the individual suffer harm after the sleep deprivation is discontinued. Instead, the effects remit after a few good nights of sleep. [my emphasis]

Yoo appears to be simply reporting back a bunch of claims CIA made to him, claims which have no names attached to them.

And one of the studies noted–indeed, the study justifying CIA’s proposed limit to keep AZ awake for 11 days–sure looks a lot like what AZ himself explained had already happened.

I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.

[snip]

The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every fifteen minutes twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

[snip]

I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.

The shackling to a chair is the description CIA would later use for how they induced sleep deprivation in those who could not stand. Add in the noise, cold temperature, and water flicking, and they were using several means by which to keep AZ awake. And, he claims, this period lasted for two to three weeks. Even assuming he lost track because of disorientation, it’s clear they subjected him to far more than the 72 hours they had claimed to do.

Combine AZ’s own observations with what several people told Jason Leopold.

For example, one current and three former CIA officials said some videotapes showed Zubaydah being sleep deprived for more than two weeks. Contractors hired by the CIA studied how he responded psychologically and physically to being kept awake for that amount of time. By looking at videotapes, they concluded that after the 11th consecutive day of being kept awake Zubaydah started to “severely break down.” So, the torture memo concluded that 11 days of sleep deprivation was legal and did not meet the definition of torture.

That is, according to these sources, the experiments on AZ appear to be the source of the claim that someone could experience sleep deprivation for 11 days. [Update: Though see WO’s point here.] The study on AZ appears to have been key study cited to support their claim that sleep deprivation didn’t cause prolonged mental harm. They used their own study among others in their claims about sleep deprivation.

They used AZ’s own torture as “proof” that it wasn’t torture.

And, if these descriptions are accurate, it means that this early stage sleep deprivation already had caused AZ severe mental suffering.

No wonder the CIA lawyers were worried that the torturers might be found to have specific intent to cause severe mental suffering.

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126 replies
  1. behindthefall says:

    Somebody oughta give Abu Zubaydah a medal. Maybe not the U.S., but what a tough, resilient individual!

  2. klynn says:

    And, given the other details we know about the memo writing process, we can date when they consulted experts to construct Section II of the Bybee Two memo. For a number of materials cited in there, we know they received the information after July 24. For example, here’s the OPR Report’s description of Jennifer Koester receiving these materials after July 24.

    Could not one push that the true experts on harm of techniques may actually be the ICRC? Are not “in house experts and contractors” carrying a conflict of interest as experts; therefore, not able to be experts?

  3. behindthefall says:

    And completely missing from all of this Yoo-hoo-ing back and forth is any consideration about the quality of information that might be obtained from the person being not-tortured, or the speed with which it might be gathered, or whether the not-tortured-person would comply willingly in the future, or whether any of the not-torturing-captors would be any use to anybody ever again. Humane interrogators have had hard crashes at the end of a war; how hard will/do these not-torturers crash?

  4. bmaz says:

    Your posts have done a remarkable job in dissecting the oblique and the craven, not to mention the inconsistency. I still cannot help but return, every time I read this stuff, to the thought that coursing below all such analysis is the more fundamental point that it is just a circular self serving pile of hooey. Even if all this gobbledy gook was true, and it is most certainly not, Yoo, nor Bybee, nor anybody else, can competently legally make the conclusion there is no specific intent. The whole concept presupposes that the OLC opinionmaker is the prosecutor and jury all wrapped up into one. Before the fact! But, of course, they are not. No department that had ever issued these opinions before the fact could ever be a competent charging and prosecutorial authority, they would be ethically terminally conflicted. Beyond that, it is all a jury question, and I positively guarantee you that juries dispense with this type of sophistry nonsense very quickly and then judge for themselves and relentlessly convict.

    Say what you will about Chertoff, and much of it is fair, he got a whiff and told them they were full of shit on the advance declination and exculpation front and that juries can and regularly do convict in the face of what they were arguing. Chertoff, who had actually been a trial attorney and criminal division chief and a federal judge – a man who would have a clue – said no. So Yoo, Bybee, Gonzales, Addington et al. – people with law degrees but who couldn’t fucking find a trial courtroom if you spotted them a map, compass and GPS unit – just added some more horsengoggle into their BS and sent the nation off to torture. It is absolutely insane.

    • phred says:

      So Yoo, Bybee, Gonzales, Addington et al. – people with law degrees but who couldn’t fucking find a trial courtroom if you spotted them a map, compass and GPS unit – just added some more horsengoggle into their BS and sent the nation off to torture. It is absolutely insane.

      Indeed. And yet Bybee is an appeals court judge and Yoo remains a law professor at Berkeley in good standing.

      And DOJ can’t find a crime anywhere they look…

        • phred says:

          Heh. Not only are they not looking, they have their fingers jammed in their ears, their eyes screwed tight, and in loud sing songy voices they’re shouting “we can’t hear you”. I’ve seen better behavior from 5 year olds. No one in the DOJ deserves their precious law degrees or fancy titles on the office stationery. They are a disgrace.

  5. orionATL says:

    bmaz @4

    says what i am thinking.

    as i imagine things, when you go into a court, all your carefully thought out facts, reasons, excuses, and lies get thought thru and challenged by,

    guess who,

    folks other than you,

    folks whose interests are not your interests.

    that is when the real testing of a viewpoint re: lawful or unlawful, fair or unfair, expert or not, intended to are didn’t, really happens.

    the notion that yoo was intent on providing solid, protecting legal cover for the cia’s torture actions maybe be the case,

    but

    yoo’s writings may have been a calculated deception aimed at the cia by cheney and/or doj – that is, aimed to give cia fluff for legal armour when they thought they were getting steel (cheney has been rumored to despise the cia) –

    in order to keep cia torturing confidently.

    speculating further, one might guess the cia may have expected this; they have been around d.c. for a few decades.

    so we might have a situation in which ovp/doj and cia are playing games with each other (and with abu zubaydah’s body).

    each understanding the other’s charade and together, going forward with violent (and futile) torture.

    this alas is how large organizations “work” (or dysfunction) in our current social world of large organizations – corporate or governmental, citibank or cia.

    put another way,

    if yoo’s. bybee’s, et al’s, arguments were so thoughtfully drafted and so legally compelling,

    and if national security needed and benefited from torture such as abu zubaydah experienced,

    why are torture apologists so anxious that the facts about torture not be known?

    why are they trying to frame demo legislators as complicit?

    why would liz cheney be covering dad with her body?

    • bmaz says:

      We bandy about terms like “the justice system”, “due process” and “the rule of law” quite frequently here, but they are all founded on the right to trial, confrontation and cross-examination and, ultimately, a judgment by a jury of peer citizens. What was attempted here was an unmitigated craven attempt to usurp all of that on acts that had been committed, and that were planned to be committed, that were known and believed to likely be criminal (if there was no such belief, there would have been no need for the contortions). But there is a difference between engaging in self serving discussion and actually making it so. What occurred was nothing less than a conspiracy to involve every modality of government that could impinge on subsequent accountability and compromise them to such a degree that accountability was impossible. In this regard they appear to have been indeed successful; however, it was, and is, nothing short of a conspiracy to subvert the justice system. But when the justice system itself does it, and can do so with impunity because of insider immoral shills like David Margolis, it turns out it really can work I guess.

      I do not mean to undercut the extreme value of what Marcy, Jason, Jeff and all are doing in deconstructing the details – it is incredibly important – but I also fear that we get lost in all that sometimes. Where are the trial lawyers and judges who know better? I kind of wonder if all the detail isn’t having the unintended consequence of masking the underlying absurdity of the whole concept? Because the root is there is no question in the world but that what was done meets the elements of the crimes; it absolutely does and, if properly argued in front of a jury, all these other contretemps would almost certainly play out to make the case for bad faith and conviction geometrically stronger, not exculpatory. I do not know or understand what type of crazed mindset these people were bound into, but to someone, at least me anyway, that has spent more than a couple of decades actually in criminal trial courts and practicing in real courthouses, it is absolutely insane. Maybe I am just not on the legal and intellectual level of these “scholars”, I dunno; however I will rest a little easier knowing I am not of that ilk.

      • Jeff Kaye says:

        Oh, I agree. And where was Congress, as well? And the press? The religious institutions? The entire goddamn civil society (with some important exceptions) took a dive on this, and still is.

        To EW: this is an excellent account of how Yoo/Bybee/Addington assembled a false legal justification for torture. The utilization of experimental data upon the tortured in order to provide “proof” of safety, the failure to rely on any real experts, or misstate what data they did have, etc. Just a fine, fine job!

        What do you make of the fact CIA was able to mobilize DOD Office of General Counsel to make the quick request for info on SERE interrogation techniques? Says something about who is really in command.

        It’s almost funny to read Ogrisseg’s testimony, and how this lowly officer was suddenly getting requests from SecDef level for info on SERE techniques, including waterboarding, which he barely even knew about. Get it out right away! So Ogrisseg said he couldn’t think of anyone physically harmed by waterboarding, and it was left unsaid anything about psychological harm, and then they twisted what Ogrisseg said anyway.

        As I’ve noted before, there has never been a scientific longitudinal study done of the physiological or psychological effects of SERE techniques, or not one we know about anyway.

        • emptywheel says:

          I’m still actually most interested in the other document that was included in teh packet, which Haynes seemed to have most direct influence over. That’s the sending of descriptions of techniques that resemebled what was actually being used, though the descriptions weren’t integrated into the Bybee Memo. I’m still puzzling through that one.

          • Jeff Kaye says:

            You mean the “Physical Pressures Used in Resistance Training” document, right? The one that includes techniques like “smoke” and “grounding”?

            I think of it like raw material for the EITs. Note that at the end of the document there’s a section called “Other Tactics to Induce Control, Dependency, Compliance and Cooperation.” These are the old Kubark techniques, and are the ones that made it for the most part into the rewrite of the AFM/Appendix M, e.g., Isolation, Sensory Deprivation, “Disruption of Sleep and Biorhythms,” Degradation [Ego Down], Manipulation of Diet and Environment, etc.

            • Jeff Kaye says:

              This, btw, is what has led me to say that there are two competing torture programs: the DDD/sensory deprivation/isolation/debility and dread program they perfected in the late 1950s, and the physical pressures program derived at the survival schools. They studied the latter in the 1950s too, but apparently rejected it for use in coercive interrogation, probably at the instigation of people like Lawrence Hinkle, who convinced them it was too debilitating, and produced terrible intell/confabulations.

              The DDD method induced powerful feelings of dependency and loneliness and made people want to talk. Hence it was thought to be better at producing intel in recalcitrant subjects. It also seemed to them a natural extension of the rapport-building process. (This is what Kleinman tried to separate out in his essay on Kubark in Educing Information.) But in the real world, cruelty and a push towards harm finds a way, hence Stephen Soldz’s find on the CITF alternate interrogation plan on al-Qahtani, where their alternative to use of the SERE-type methods on Prisoner 063 was — to keep in in isolation for another year!

              • Jeff Kaye says:

                to keep in in isolation for another year!

                That is, to keep him in isolation for another year.

                I forgot that I even wrote an article on that last December: Ethical Interrogations or Torture with a Pretty Name? New Documents Expose Fake “Rapport” Schemes.

                Under the plan, al-Qahtani’s deprivation of human contact was something to be exploited. They wanted to make sure the only human being al-Qahtani would see for the next year was his interrogator. This sounds an awful lot like the production of a Stockholm Syndrome in the prisoner.

                In the end, the FBI/CITF “rapport” plan was rejected in favor of a continuation of the Rumsfeld-approved SERE-style torture, which only pushed al-Qahtani even further over the edge, and which Guantanamo Convening Authority judge, and Bush-appointee, Susan Crawford in an interview with Bob Woodward clearly labeled as “torture.” But, as we now know, had the FBI and CITF gotten their way, al-Qahtani would still have been psychologically tortured, as the now fully extant “rapport” interrogation plan reveals.

          • Jeff Kaye says:

            Oh and maybe they didn’t integrate in the descriptions because they included such phrases as (taken from the description of waterboarding) “typical conditions for application: to instill fear and despair, to punish selective behavior”.

            • emptywheel says:

              My question is slightly different. Yeah, they didn’t integrate them into descriptions (though some of the descriptions do match up perfectly). But they had already sent various versions of the torture techniques to DOJ. Yet they still needed this list, in a panic. And the more interesting thing about it is that JPRA didn’t just take existing descriptions of, at least, waterboarding and cut and paste into this document. They used of description of waterboarding that was far more harsh than what the Navy used. So my question is, how does that happen, bureaucratically, and why? They created a highly tailored document, w/almost no notice, that just happened to not be a cut and paste of Navy’s description but just did happen to be a description of waterboarding as it either already had been used or would be.

              • Jeff Kaye says:

                I wish we could have seen a description of the Navy school’s guidelines, but all we have (it seems) are the SASC quotations.

                There’s no doubt the CIA took the SERE school guidelines and made them worse, far worse. There’s no way that any SERE school student would ever be waterboarded more than twice, not to mention 83 or more times. But once was usually enough, even too much.

                What I do have, and presumably you don’t, is a description of the Navy North Island training school use of waterboarding written in September 2007 by Gary Percival, a high-level SERE psychologist. Here is a transcription of the description of the SERE practice. I have put in bold some parts I thought notable:

                When properly executed, there is little risk of permanent physical damage. Poorly executed, the waterboard can cause extreme pain and damage to the lungs, brain damage (oxygen deprivation), and broken bones (subjects pulling against the restraints)….

                The Navy’s North Island CoC training school is currently the only CoC [Code of Conduct] program using the waterboard as a training technique. The Navy’s Brunswick CoC training program previously used waterboarding as a physical pressure, but recently removed it from the list of approved pressures. For CoC training, waterboarding consists of strapping (hands and feet restrained and several straps tightened across their body) a student to an inclined padded board with their head lower than their feet. Water is poured from a canteen cup onto the student’s neck, chin, mouth, and nose area. For some students a cloth is placed over the student’s mouth and nose and the water is poured directly onto the cloth, making it impossible to breathe while the wet cloth is in place. Water is poured until the student gives up and responds to the question being asked by the instructor or until a pre-specified time and/or water amount is complete.

                The gag reflex is seen in almost every student. Even those who know about the limits and restrictions in place believe they are going to drown while on the waterboard.

                Although there are no recorded incidents of students being removed from CoC training or experiencing permanent physical damage as a result of the waterboard, it is still a high risk, low return technique.

                What’s missing from this is the idea that only a set amount of water is poured onto the victim, as it appears open-ended. It also appears that a cloth wasn’t always used over the mouth. In addition water appears to have been poured from the nose area down to the neck.

                In any case, there’s no doubt that, as you have shown, Haynes went back to JPRA and asked for a different set of definitions of “physical pressures.” It certainly sounds as if he were seeking something close to what already been used. The way the CIA was to, over time, fine-tune and bureaucratize the practice is macabre.

                I still wonder at the facility at which Haynes jumped to the CIA’s whip — or did Rumsfeld or Addington or even Cheney call him on this and give the direction?

                I also am unconvinced, without seeing it directly, at what set of Navy instructions on waterboarding were handed over to SASC. Given that the North Island school was under a lot of heat at that time, and given my belief that there has been a cover-up over injuries, particularly psychological harms, done to SERE students, I wonder if the Navy instructions given to Levin weren’t meant to minimize the practice as done at North Island. Were the instructions circa 2001-02? Were they “current” (circa 2007 or 2008)?

                While I do believe the CIA far exceeded the use of waterboarding as described in any protocol by a SERE school, I’m not so sure that waterboarding as practiced in the latter was as minimal as described. In one document I have from 2007, it is complained that “two full canteen cups of water were poured after the student started tapping,” i.e., after he had given the pre-approved signal to stop. This is, I estimate, at least one pint of water, and we don’t know how much was given prior to that.

                One and a half gallons is a hell of a lot of water, and I doubt that much was used, or typically used at SERE school. But then, the CIA wasn’t using it, IMO, as you know, really to get info, but to produce a condition of “learned helplessness”, i.e., physiological and psychological collapse, one that supercedes a conditioned fear response to produce a failure of the body’s defense systems, and then to study that.

            • klynn says:

              Thanks for the responses in the “Issues That Arose” thread.

              EW, thank you for your great work and for developing a place for many to come and grow a synergy on serious issues.

              • Jeff Kaye says:

                I certainly never responded to your question as to AZ’s “informant”. If I remember correctly, it was one of the interrogators, or it was implied it was. I suppose it could have been one the medical personnel, but that seems unlikely, as it was someone who felt comfortable and unconflicted in making such a comment. It could have been a confabulation of memory, which can happen under delirium (a mental state no doubt he found himself in from time to time, and not necessarily because of pre-existing conditions).

                But if anyone said that, I can see one of the SERE-originated interrogators doing that (and I’m not convinced Mitchell and Jessen were the only ones present… I find myself wondering if Roger Aldrich didn’t show up on the scene at some point, perhaps Spivey, too, checking out how “Michell, Jessen and Associates was working out in the field). These guys aren’t trained to hold secrets the way CIA is, and I can see how they might not be able to hold out an unconscious need to confess to their victim.

                But this is all guessing, and we wouldn’t really know until there was a line-up, and AZ was picking out the person, and even then…

  6. WilliamOckham says:

    The passage you quote about sleep deprivation is actually a reference to James Horne’s research. See the TPM Muckraker article. This doesn’t invalidate your conclusion about the sleep deprivation preceding the memo. The reference to Horne’s work was inserted as part of the Yoo-suggested retroactive justification. The CIA torture program of the ’60’s was using sleep deprivation long before Horne’s research.

    • WilliamOckham says:

      Yes, I know the reference is the later Bradbury memos, but I’m pretty sure that Horne’s work was indirectly cited in Bybee Two.

    • emptywheel says:

      I know of the cite, but I’m not sure you can say it’s the cite here, not w/o it being named. One thing I’ve been wondering is whether they were using the existing records as benchmarks.

      There would be a number of reasons not to cite existing studies (in addition to the problems with hallucinations being more common then let on here). Most importantly, it’s the question of combining it with other techniques. There are several paragraphs in Bybee Two that basically blow off that question ,relying half-heartedly on SERE, which read in retrospect makes it clear where the need for the Combined memo comes from.But there, too, they were working off their own research.

    • emptywheel says:

      Also, one point of clarification.

      The point of this post is not that the sleep deprivation preceded the memo. That’s crystal clear from the memo itself, as I note.

      It’s that the sleep deprivation (at a minimum) preceded the effort to do due diligence to make sure this stuff wouldn’t cause mental harm.

      OLC is perfectly happy retroactively authorizing stuff, so the date of teh memo isn’t all that important. But if they didn’t refer to the studies before they did the torture, then there’s no way they can say it affected intent. That is, you can’t go back and retroactively change intent, which is what they were trying to do here.

      • jdmckay0 says:

        OLC is perfectly happy retroactively authorizing stuff, so the date of teh memo isn’t all that important. But if they didn’t refer to the studies before they did the torture, then there’s no way they can say it affected intent.

        Well, there is a way they can say “it affected intent”: they just say it.

        As you’ve pointed out repeatedly, timeline is pretty clear that Yoo was retroactive. What’s to stop ’em from doing the same w/this? It was their modus operandi. All it would take is a group huddle to coordinate stories, a couple well placed phone calls from black tomb of Federalist Society, a short time of media saturation to numb public’s senses, and voy lalala: retroactive insertion.

        Who needs black helicopters when we’ve got this shit?

    • JasonLeopold says:

      Regarding the Horne study, I realize that this is one of the areas where it’s obviously difficult for me to support anything being said by these sources without having documents to back it up. But in terms of the Horne study, it wasn’t even on the torturers radar screen when they started the sleep deprivation and I can say with confidence that I know there are documents, which I have FOIA’d (and probably won’t get but hoping for a description or something), to support that it was discussed in an email chain in late June/early July for the first time after AZ had been sleep deprived twice for nearly five weeks. And it was first mentioned by OLC not OMS or anyone at CIA. That’s not to say that the torture crew didn’t know the Horne study existed. But in terms of where they came up with 11 days that’s from their own study of AZ from the torture tapes beginning in mid-May. That’s how it was explained to me. And the thing is that this is stuff John Durham should very well know about.

      • bmaz says:

        That is the thing about Durham though – he is doing a “review” of previous declinations. Those declinations, from what is currently known, are all based on the OLC memo rationales. To reverse any of those five, six at the outside, declinations, he will have to either blow up the Yoo/Bybee/Bradbury work product (which certainly can be done as we have seen from the withdrawals) or publicly rebuke the decisions of McNulty and Rosenberg, a couple of supposed holy white knights of the DOJ. What is the scenario DOJ, Holder or Obama wants any part of either scenario? I just don’t see it. He knows about the stuff alright; now he is looking for a way to forget about it.

        • JasonLeopold says:

          I’m in total agreement with you there (fellow late niter!). That’s sort of what I meant when I said he should know about it. He’s collected plenty of evidence that goes far beyond why the torture tapes were destroyed, but at the end of the day I’m sure he won’t do anything. In fact, I would be shocked if he actually did.

          • bmaz says:

            And i guess I should have elaborated on the “blowing up the previous work product”, not just the withdrawals would indicate the feasibility of that; heck, even the Great Margolis’ evaluation could lend itself to it as far as functionality, as opposed to author malfeasance. But to do so repudiates them ever having been appropriate as a shield, and that presents a pretty ugly view for them in its own right. There is one way around it, which I will discuss in a post regrading the Salt Pit death of Rahman soon, hopefully tomorrow.

            Yes I am a late niter; combo of a couple of things, one I am west coast time based and two I am up for the Malaysian Grand Prix (though I am usually tinkering around semi-late as a normal course).

        • bobschacht says:

          He [Durham] knows about the stuff alright; now he is looking for a way to forget about it.

          Is there anything in Durham’s record that would support the last half of this assessment? IIRC, that’s not what Durham is noted for.

          Bob in AZ

          • bmaz says:

            First off, you don’t know that in the least. Durham is known for supposedly being dogged once the department decides to file charges such as in the Massachusetts mob cases, but special assignment cases are not left to a single prosecutor, and these certainly are not as well. Furthermore, all the overblown hype about John Durham is that “he hasn’t lost a trial”. You know what it means when an attorney who has been around a long time has never lost a trial?? That means they have not tried very many cases or are very fucking selective in those that they do and that a whole lot of cases that have been put in front of them never get filed or represented. So, you have no idea of how many cases that were difficult that Durham and/or his superiors have refused to tackle because they were difficult prosecutions that might actually be defensible by a good defense lawyer. This “legendary” reputation of Durham’s is complete bullshit. He may be a very good attorney, but he is no magic man; because such men just do not exist. If you try a lot of hard cases, you lose some here and there; that is just how it goes. Juries do the darndest things.

            In Durham’s case, what is going on in the cases in front of him speak for themselves, and he is not prosecuting them; otherwise, well, he would be, you know, prosecuting them. The crimes on destruction of evidence are patently obvious. A first year law student could figure that out and charge them, and could have the day they were assigned to Durham. If you are a career DOJ prosecutor and cannot see that destroying evidence central and material to the detention cases of abu-Zubaydah and al-Nashiri, and exculpatory to boot because it negates credibility of any admissions/confessions they respectively made, is a federal crime you are either a lying sack of shit or completely incompetent. Yes, it really is that simple. So, in short, yes there is more than ample evidence to support that contention.

      • JasonLeopold says:

        I should add, and this isn’t news, but the torture tapes, in addition to showing pre-torture memo techniques also had a lot to do with studying AZ’s psychological and physical reaction to what he was being subjected to.

      • emptywheel says:

        That doesn’t necessarily refute WO’s point though.

        If they did find out about the study in June or July, then they may have used it as their study to cite in July. By one scenario, they cite Horne in July (not having read him before they sleep deprivate AZ) bc OLC has told them about it. By another scenario, they say, we’ve DONE a study, and we’ll rely on THAT.

        The point, in any case, would prove my point, which is that they’re pretending to have consulted experts, but there are many ways to prove they didn’t consult experts before they sleep deprived him, meaning their intent when they DID it could not be “negated” by virtue of having consulted experts.

        In fact, the later scenario might make more sense: That Yoo and CIA refer to Horne et al, but not name it, bc it includes information that would contradict their point. Then, when Bradbury comes along, he’s got to cite what OLC knows is out there, and find some way to dismiss all the reasons Horne hurts his case.

        • emptywheel says:

          Though I should add, one of the things I find fascinating, as a student of language, is the way Yoo contorted the language in his whole “negate” theory to pretend that time stood still. He pretty clearly knew he had this problem. That’s why I’m fascinated by this bit:

          Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent necessary to violate Section 2340A.

          “You do not meet.” Frozen in time for all eternity, without any acknowledgment that intent would always be tied to the commission of individual acts, at different points in time.

        • WilliamOckham says:

          Yes, that’s basically what I think happened. My original comment was unclear in that I misstated your point even though I understood it (I was tired). I think it’s interesting that Jason Leopold thinks there is evidence for what was my textual supposition.

  7. orionATL says:

    bmaz @10

    no one fails to appreciate another or undemines another by asking the kind of questions you ask.

    it is dead certain clear to me from following this torture discussion for a long time, that every one involved is feeling their way along hilly terrain.

    there is always in this kind of “electric wire” research a tendency for those closest to the hot wire to focus on the wire -a very natural response.

    but there is and always has been a set of concentric rings about the “the u.s. gov’t tortures illegally” issue.

    one of those involves the real-life, in-front-of-the-judge legal issues if ovp/doj protection ever goes to trial.

    one reason i responded to your #4 with such alacrity is i have been sitting here reading for many weeks and thinking there is no way in hell john yoo’s cover-up lawyering focusing on “intent” would ever convince a stubborn, honest judge, let alone a jury.

    there is no way in hell career military administrator james mitchell is going to be able to present himself as an expert on the psychology and physiology of torture.

    i’m guessing the guy’s like a hi-school principle with a degree in clinical psychology.

    folks like this are program administrators, not academic experts.

    the value of what ew and 1boringoldman have done is to block the pathway of escape were there ever a trial on torture.

    it would be impossible to do the research that has been done here over the last several months under the pressure of a trial, even a lengthy one.

    the same goes for a congressional investigation (let us pray).

    the same goes for foia requests made subsequent to this major historical work.

    ew and her team have provided an exceptionally detailed history of torture cover-up in the u.s. govt between 2002 and the present.

    that will be invaluable to those above, perhaps even more so to
    historians 20 yrs from now .

    but the history is not the whole story.

    legal mattersjohn just solipsized (?) about in his close environment

    intent

    expert

    good faith

    will all be subjected to the kind of questionimg you or scribe or mary would employ were there a trial.

    then, in the back of jurors minds,

    there would lurk the smooth, smug, flat face of john yoo and the hard-eyed, goateed face of james mitchell
    vs
    the writhing, bleeding body of abu zubaydah.

    i hope it happens.

    if there ever is a trial or congr hearing the work of EVERY person who has conttibuted to this weblog in good faith will have had a part in it’s happening,

    • bmaz says:

      it would be impossible to do the research that has been done here over the last several months under the pressure of a trial, even a lengthy one.

      Oh no, that is not the case at all. The trial process, with lawyers and staffs and the ability of discovery and cross-examination is exactly the mechanism that is designed to crack open such things. The type of deep analysis that has been done here is exactly what goes on behind the scenes in big legal cases; you may or may not see it, depending on evidentiary rulings and trial strategies in a given case, but behind the scenes every detail is fleshed out, categorized, stripped and reassembled and inspected for how the whole fits together. A good and aggressive legal team working a big case is a beauty to behold; it is a shame that more people do not get to see and appreciate the process at work close up behind the scenes. And it is a shame that it is only being done here and not in an adversarial court proceeding as well with all the attendant powers and capabilities therein.

    • jdmckay0 says:

      the value of what ew and 1boringoldman have done is to block the pathway of escape were there ever a trial on torture.

      I think you’re right about that O. Insightful & well said.

      that will be invaluable to those above, perhaps even more so to historians 20 yrs from now .

      Could be. And can’t help wondering, given corrosiveness of all this, if it won’t be some other country’s historians doing so in context of detailing HOW THE US FELL TO PIECES AND DISINTEGRATED.

  8. orionATL says:

    to put matters less long-windedly

    there are three rings to this circus:

    – the bureaucratic history of how proposals to torture proceeded to torturing

    – the politics of preventing the torturing that occurred from ever being known to the american people in detail

    – the law’s decision, if the law ever gets the opportunity to make a decision, on the legality of the govt’s decision to torture.

  9. JasonLeopold says:

    bmaz @10: what you said is incredibly valuable and I for one am glad you verbalized it because it’s important that we don’t forget that. I can tell you that from my end one of the most frustrating issues in reporting these stories and helping to deconstruct and unravel the official narrative behind the torture program is hoping that it will lead to some accountability in a courtroom or via a DOJ or even a congressional investigation, but it doesn’t. Yet for some reason I continue to hope that each new report and every new revelation will change that.

    • bobschacht says:

      One of the things I hope is happening is that law professors are mining these threads for material to use in their classes.

      Another thing I hope is happening is that congressional staffers, as well as staff at places like ACLU, EFF, the Center for Constitutional Rights, Amnesty International, ICRC, and others are mining these threads for material to use in upcoming hearings and law suits.

      And I’m even so crazy as to hope that DOJ staff are also reading here and making notes and building a consensus for a very different set of policies at DOJ that will once again make us proud of that Department.

      A glacier moves slowly, but not much can stand in its way.

      Bob in AZ

    • bmaz says:

      Well, I was pontificating from a bit of a high horse really, but I am serious about the legal nature of the intent game that was played; it is fundamentally duplicitous and bogus. And it really is the entire ball of wax underpinning the torture program. It reads like some pompous convoluted law school crap produced by otherwise bright students or academics writing about what happens in criminal court processes when they have never been in one. And, really, that is exactly what it is. Thing is, though, that kind of stuff just doesn’t fly in the real world, and neither would any of this. What was produced may be a political excuse for not prosecuting and convicting of the obvious crimes, but is most certainly not a viable or compelling legal rationale for not doing so. The whole nature of “intent” they found the entire theory on is sheer fantasy and does not exist in the real justice system. The consideration of intent simply does not work that way. What they center their whole theory on is not a predicate element as they assert obviating charging, rather it is an affirmative defense to be plead at trial; and one that very rarely is effective. I still have not done an appropriate job of explaining this to those unfamiliar with criminal trial procedure, I will work on that; but there you have it.

      • 1boringoldman says:

        Marcy has done her usual amazing job of parsing out the time-line and the deceit involved in this piece of the story [particularly in this post]. If anything can ever come of it, that’s what has to be done. But there are a number of mental health types reading these threads, and I’d bet not one of us can imagine ever saying that these techniques aren’t harmful, or that they could even be contemplated without having an intent to harm or cause pain. bmaz is correct that the details tend to defuse the global insanity of it all.

        When Captain Less interrogated Adolf Eichman, he thought he could get through the veneer and find out what really motivated him. Eichman never came close to engaging what he had done. He remained the bureaucrat who talked about production figures to the very end. Before I watched the Congressional Hearings with Addington and Yoo, I held out some naive idea that they had been driven by the horror of 911, but that’s not what I saw. They spewed contempt and arrogance from every pore [and seemed to really enjoy it]. It was boring, annoying, and I doubted that either of them would ever think about anything except refining their arguments and being obnoxiously right.

        I mention Eichman because I think about the post World War II Germans frequently when I read our blogs about these matters. Most of us following these stories have opposed these wars and been onto the deceit from near the beginning – soldiers in the resistance, veterans. We have no trouble being outraged by each new revelation. But most Americans plastered their cars with american_flag and support_our_troops magnets, voted for Bush in 2004, and watched the other news channels. They think Joe Wilson is a South Carolina Congressman. They may have tired of the wars, or forgotten about them, and to look at this whole story clearly would only make them feel shame. So they don’t. We want them to feel betrayed, or outraged, but what they want to feel is either proud, or patriotic, [or maybe nothing] about this whole sordid mess. Just as it’s hard to imagine what a German who had stood on the street filled with nationalism and pride at a Hitler parade would feel in post-war Germany, it’s hard to imagine what would make America genuinely engage what EW makes so clear in this post. On the other hand, watching the Chilcot Iraq Inquiry in the UK, I’ve been impressed with their review of the war so far [of course they have “the Americans” as a deserving straw man to punch around in the process].

        I guess I see our country right now being like one of those little molested alter boys we read about too often these days, trying to move on, trying to put it behind him [without even thinking about “it”], trying to get over it. Attempting to get one of those kids to look at what happened to them is often met with a wall of resistance and shame. Leaving their abuse in the netherworld just allows it to go on doing its damage. The skill is in finding a way for the child to allow what happened to be kept safely in their minds to keep them whole, rather than packed away to fester and fragment. My analogy is, I think, obvious. The truth might make us free, but there has to be a way for people to tolerate seeing it…

          • whitewidow says:

            That is a great book, Mitchell is awesome.

            Waaay back in high school we conducted a very rudimentary (we were 16 yrs old) mock trial on whether the use of the bomb in Japan was justified. My team argued, and through this process I became convinced, that there was no justification.

            The reaction of the class to the notion that we could even question America’s moral authority was, of course, typical. But that was probably the first time I became intellectually aware of the obstinacy of the authoritarian mind. Some in the class were definitely in the “la la la I can’t hear you” category. Even in a silly mock trial in a high school history class, they could not even entertain the notion that there could be an alternative view.

            The most difficult thing that this class had to reconcile their cognitive dissonance about was Nagasaki. You could almost see the little wheels turning as they tried to come to grips with how to justify only waiting 3 days, and not bothering to evaluate the effect of the 1st bomb before tossing another one.

            Our society only grows more numb by the day. We turn the other way on so many wrongs. “Liberal” concepts are very nearly dead, and apparently there are only a handful of people left willing to even defend these ideas. The Republican party has become Fascist, and the Democratic party has become the new Republicans.

            I miss the 70’s.

        • emptywheel says:

          Great comment, thanks.

          Though my takeaway from the Addington/Yoo testimony is slightly different. I agree that Yoo, like Eichmann, doesn’t get what he did, doesn’t see it. But the thing about Addington is that he sees all the mines in the law that put this project at risk. One of the central dramas of that hearing is the way how Addington first said, “Yoo told us what he had in his memo, and I said, good, I’m glad you’re including that” and then, realizing that he had left Yoo exposed, he came back and said, “I was the client and I told him to put it in there.” Both sides of the OPR report used the one Addington quote that was most useful for them, one of which implied Yoo had decided to put in the affirmative defenses, one of which implied Addington had.

          SO while I think Yoo is amoral in a sense (I’ve often thought about how being a child of Korean immigrants might play into this, in that it refocused loyalty but the same kind of allegiance onto the US), but Addington clearly sees what we think of as the law and spends a lot of time trying to thwart it. Yeah, they both act out of a belief that the President should have fairly unlimited power, but Addington thinks and acts a lot more pragmatically to get there.

          • 1boringoldman says:

            Actually, I see Yoo as ever so slightly more moral than Addington [though just barely]. Addington seemed to me to derive his [very inflated] self esteem from the thoroughness of his argument, from covering all his bases, from the completeness of his “thwart,” from overcoming his foes. What a perfect choice for Cheney, whose only focus is the politics of getting his way. Once on a trajectory, they’re quite a team.

            Somehow, they found Yoo, probably driven by his parents’ 1950’s morality of stopping World Communism at the 38th Parallel. Yoo seems at least to be paying lip service to “the ends justify the means.” Addington and Cheney got into the “means,” but I think once they got going, the “ends” were generic – “Me Power.” As you continue to reveal their clandestine pathways, I marvel at their Eichman-ness – keeping their production up without really ever really reflecting on what they’re producing.

            Parenthetically, we often marvel at your mastery of the material and your sleuthing abilities, but this recent bit of work is some of your best ever. Thanks…

            • emptywheel says:

              Agree about Yoo. He’ll be an interesting character in movies many years from now.

              But as to Cheney and Addingotn (and yes, two peas in a pod), I really do think they have an end in mind, it’s just horrible. When I speak of NeoFeudalism (and mind you, I think many people in DC are affirmatively pursuing it, bc it’s the one thing that’ll maintain our system of elitism and with it their notion of control), those two are the people I have in mind.

              • phred says:

                But as to Cheney and Addingotn (and yes, two peas in a pod), I really do think they have an end in mind, it’s just horrible [snip…] NeoFeudalism

                This point cannot be emphasized enough. I completely agree. Cheney and Addington have a very clear end in mind and they will stop at nothing to get there. I really don’t think they are motivated by power in and of itself. Their talent lies simply in the fact that they are supremely capable of manipulating the power at their disposal to achieve their neoconservative ends.

      • phred says:

        And this is why DOJ can’t seem to find a crime. Every competent trial lawyer must know that the nonsense Yoo and Bybee wrote for the express purpose of persuading the hired thugs that they wouldn’t go to jail isn’t worth the paper it is written on. The hired thugs committed crimes. The lawyers who persuaded them it was ok with worthless words on sheets of paper also committed crimes. Everywhere you look there was criminal intent and criminal action. They know they could not win before a jury. And so, DOJ pretends that nothing at all was amiss. The only way they can keep all of the criminals out of jail is to make sure they never see the inside of a court room.

        As Jeff K. pointed out though, this isn’t just about DOJ, this is a systemic failure of all of our social institutions — all 3 branches of government, the independent press, and both secular and religious organizations. A complete across the board failure. We are not who we tell ourselves we are as a nation.

        • bobschacht says:

          We are not who we tell ourselves we are as a nation.

          Phred,
          You hit the nail on the head. Maybe the 4th of July should become a day of penance.

          And oh, BTW, Happy Easter. I look forward to the Resurrection of our constitutional system of government, as well.

          Our founding fathers were wise enough to know that pretty words on a page don’t count for much, unless actual people turn those words into meaningful action. For the past 8 years, at least, our Congress has been seriously derelict in its duties as a check on the Executive Branch. As Ben Franklin supposedly replied to someone who asked what form of government we have, “A Republic, if you can keep it.” We appear to be losing it.

          Bob in AZ

    • Jeff Kaye says:

      I saw it and replied.

      And re your remark @23, and Jason’s @20 – I hope, too, that others are mining these threads. I know some who read them, so take hope that some of that is going on. EW must know that, too.

      I can despair, as much as anyone, and the years are ticking by, aren’t they? But they waited years to get some semblance of accountability in Argentina, South Africa, Greece, Spain, and elsewhere. When it comes to other things, like Gladio, the process also continues. A correspondent sent me a document from Belgium (in French) that describes the Belgian response to learning it had a secret left-behind army run by NATO in its midst, collaborating with secret services, and generally unknown to government and the public: an official report of the Belgian Senate from 1991 – http://www.senate.be/lexdocs/S0523/S05231297.pdf (again, in French!)

      Since I see the fight against torture as essentially a fight for civilization, I believe it must go forward. Hence, too, I see this blog as a bulwark of civilization — no kidding! What EW is doing, and her commenters, and others like Jason working so hard on this, and orgs like ACLU, CCR, PHR, HRF, etc., is of the utmost importance. I’m not being grandiose here. No one really wanted this, but what do you do when faced such a degradation of society (not to mention the suffering)?

  10. kgb999 says:

    Wasn’t a part of their “experiment” taking AZ past the point of harm – even by their own definition? It kind of seems like they took him past the point, recorded all the stuff that happened and then used that to draw their line. Or am I misunderstanding what they did?

    • phred says:

      You are correct. They could not determine that 11 days of sleep deprivation was “safe” unless they went beyond 11 days. I would imagine they did that sort of thing in all of their experimentation. One cannot find a limit until it has been passed.

      Note, I would strenuously dispute their assertion that 11 days of sleep deprivation is safe, but even using their own twisted reasoning, they would have had to go beyond their self-imposed limits to determine what those limits were.

  11. JasonLeopold says:

    bmaz @26: You’re comment @20, I should add, reminded me of a reaction I had after I received this press release from DOJ Tuesday: http://www.justice.gov/opa/pr/2010/March/10-crm-347.html

    Assistant Attorney General Lanny A. Breuer Announces New Human Rights and Special Prosecutions Section in Criminal Division

    Office of Special Investigations and Domestic Security Section Merge to Strengthen Human Rights Violator Program

    “Since its founding, the United States has been a steadfast champion for the cause of justice around the world,” said Assistant Attorney General Lanny A. Breuer. “In that great tradition, the new Human Rights and Special Prosecutions Section is poised to be a global leader in combating human rights violations and ensuring that war criminals are held to account for their crimes.”

    • bobschacht says:

      Does Lanny Breuer even know what he is saying? Or does he have American war crimes walled off from his mind so that it doesn’t even occur to him that people in the current DOJ, let alone recent DOJ staff, are probably guilty of war crimes?

      Or does this open the door to finding some accountability and justice eventually on these matters here at home?

      Bob in AZ

      • 1boringoldman says:

        “Or does this open the door to finding some accountability and justice eventually on these matters here at home?”

        Following the link, it looks like it’s all extraterritorial – they mention Nazis and a Liberian Torturer named Chuckie.

        • bmaz says:

          Heh, if you are not familiar with the US prosecution of Chuckie, you should take a gander at it. Cognitive dissonance, a term I used a bit upstream, does not begin to cover what was done there compared to what is NOT done in the cases we discuss here.

          This is an excellent summary of the gig for you.

          Oh, and by the way, if you were not aware, and this is almost poetic, Taylor’s defense tried to attach, quite unsuccessfully, a version of Yoo’s “Bybee” reasoning to a jury instruction in an attempt to exculpate/acquit Taylor. As I have been blathering here tonight, it just doesn’t work that way in court (and boy howdy did the DOJ suddenly object to the reasoning I might add). Here from a Time Magazine article is a rudimentary relation of that:

          The first alleged victim to testify was Rufus Kpadeh, a 37-year-old farmer from northeast Liberia. He recalled in Liberian English that over two months in 1999 he was bound, beaten and forcibly sodomized and had plastic melted onto his flesh at Gbatala base, a quarry used by Taylor’s unit as a training facility. Until two weeks ago, Kpadeh had never traveled out of Liberia nor been on an airplane.

          He told the court that Taylor had ordered an Anti-Terrorist Unit officer, David Kampari, to “cut his nuts.”

          “I felt very bad,” Kpadeh said. “I felt as if I was losing my life.”

          But after Kpadeh’s testimony wrapped up for the day, the cultural obstacles to the prosecution’s case became immediately apparent. Judge Cecilia Altonaga told the prosecution, “I’m understanding about 50% of what’s being said.” A core issue the jury will face is not only whether these acts happened but if they actually constitute torture.

          The question of what defines torture in the statute under which Taylor is being tried has been an issue for the Bush Administration since 2002, when the CIA sought clarification from the White House on the legality — under the same law — of certain “enhanced interrogation methods.” In what became known as the Bybee Memo, John Yoo of the Office of Legal Counsel wrote that to constitute torture, the pain inflicted on a detainee “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

          Though the Bush Administration has since distanced itself from those conclusions, the Bybee Memo resurfaced in Taylor’s trial when his defense lawyers attached a copy of the memo to proposed jury instructions in the case.

          But Morton Sklar, executive director of world organization for Human Rights USA, a group representing one of the witnesses, said the Bybee Memo had been an attempt to bypass international torture-treaty standards in the context of the war on terrorism and that Yoo’s interpretation of the law “was way out of kilter with what the international standards require.”

          Remember what I keep saying about things just not working in a real court the way Yoo was crafting them? Well here you go; slightly different argument than the intent one we have been discussing here, but nevertheless quite analogous and walking, talking and now convicted and imprisoned proof in the form of Chuckie Taylor.

          And “cutting the nuts” is exactly what was done to Binyam Mohamed. Go figure.

        • bmaz says:

          Oh, and one other thing, the same statutes used against Taylor are quite applicable to our targets as well. There are actually two additional avenues of jurisdiction also available, but I will leave that for another day.

  12. bobschacht says:

    Hmmm. So now we not only have Lanny Breuer professing interest and having responsibilities re War Crimes in the DOJ, but we also have Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes, as our liaison-guy to the International Criminal Court.

    How long are they gonna do this before they become laughing stock hypocrites for ignoring evidence of war crimes in their own back yards? I mean, shouldn’t the cognitive dissonance begin to take a toll after a while?

    Bob in AZ

  13. JasonLeopold says:

    bobschacht @37: I don’t believe Breuer or whoever was responsible for drafting this press release has even the slightest idea of how this comes across. This applies to other countries although it could very well apply here if they want it to. Perhaps what ever war criminals we prosecute in other countries, if we do, those countries will prosecute our war criminals. Maybe it will be like a free trade agreement. Regarding your comment @23, I have no doubt that Marcy is widely read by many, many people at all of those organizations and especially by people in govt. One last thing about Breuer’s comment, let’s not forget that about two weeks ago Obama gave an interview to Indonesian television and, when asked whether he was satisified with the way Indonesia had dealt with its own human rights abuses, he said “we can’t move forward without looking backwards.” Glenn Greenwald wrote something up about that.

  14. JasonLeopold says:

    1boringoldman @38 a belated kudos for your great inisght on the previous thread regarding possible scenarios. That got me looking at the vaughn indexes again and was helpful in terms of filling in some holes for my next report

  15. MrWhy says:

    I’ve stopped trying to follow your dissection of what happened to AZ.

    Intent is key to any possible defense. Yoo’s definition of torture is cowpie cuisine. His definition is – can torture be proven from the condition of the detainee a year after the fact? No? Then it isn’t torture. That’s some lawyer they had providing legal guidance to the President of the USA. He should be deported to North Korea.

  16. rkilowatt says:

    Seek justice. Only justice. All else in the law is commentary.{Hillel?]

    AG Holder owes his rehabilitation surely is beholden for his Office, if only for his actions re Marc Rich. Impossible for him to act with independence on any significant counter to BO’s intention. This means entire DOJ is hamstrung on major issues on this website.

    I wish him an epiphany. If he were to resign so that an independant DOJ might be realized via a successor,… .

  17. Palli says:

    Thank you all. What the rest of us muddled and enraged readers must do after we read this research (taxing our brains to remember names, acronyms and dates) is to talk about American torture in our daily lives- in the grocery line, standing at the gas pump, during coffee break. American TV earns millions depicting torture on our crime shows, police are tasering pregnant women in cars… America tortures.
    Talking to anyone, everyone, keeps me from crying.

  18. BoxTurtle says:

    Yoo was COMPLETELY successful accomplishing his goal. Between him and the rest, NOT ONE of the torturers have been brought to justice. And it is not a particularly bold prediction to state that not one ever will.

    He sits in his professors office in Calif and laughs at folks like us.

    Boxturtle (At least Obama has the decency not to laugh at folks like us in public)

    • whitewidow says:

      There is zero will. Even Elliot Spitzer was on my TV the other night spouting the now accepted CW that sadly, nobody can be tried because they relied on the OLC memos.

      That idea may be the most pernicious and destructive of all in its future implications.

      bmaz makes a good point about getting lost in the detail. It is still difficult for me to comprehend that people are actually even entertaining the argument that this was not torture or was not illegal under any kind of rational reality. But while I’m still sputtering, more than half the country is believing that torture is justified sometimes.

      It is like someone stated “I am eating.” Then a lawyer stated, sure you’re chewing, and it is food that is in your mouth, and you swallowed said food and did not regurgitate it. Later you excreted the waste product. But you didn’t have any intent to obtain nutritional value, so therefore you were not eating.

  19. dcgaffer says:

    This may have been discussed many times previously, but I have always believed that the entire rhetorical construct of justifying torture is revealed in footnote 3 of the Bybee Two memo (always look to the footnotes!). That is, the footnote explains away (and must do so) the conjunctive ‘or.’

    The phrase in the statute, “severe physical or mental pain or suffering” by Rules of grammatical construction (if we remember our diagramming of sentences in 4th grade) become 4 distinct concepts:

    1. Severe physical pain,
    2. Severe mental pain,
    3. Severe physical suffering;
    4. Severe mental suffering

    When viewed this way, the examples in the Section 2340 make sense. That is

    (a) threats of infliction of severe pain
    (b) threats of imminent death and
    (c) threats against other persons

    could never rise to the standard as proposed in the Bybee memo because the memo equates severe to long term or chronic conditions or damage, while threats – in and of themselves – do not and likely can not. But the statute, by putting forth these examples, show how the meaning is to be interpreted. That threats DO rise to the level of “severe mental suffering.”

    The torture justifiers have to ignore or explain away the conjunctive “or”, otherwise, their defense is revealed as laughable. The efficacy of a threat has nothing to do with the “intent” of the person making the threat, but rather the perception of the individual to whom the threat is communicated. The Statute, by these examples, recognizes that the threat itself is sufficient to rise to the level of prohibited conduct. Thus severe mental suffering is a distinct concept, lacking in an extended time component, or necessity for any permanent or chronic psychological harm.

    • alabama says:

      Thank you for this. If it’s been discussed many times before, I certainly missed those many prior discussions.

      Bybee is artful, but he’s no match for the English language, and when we subject his writing to the most elementary analysis, we start to feel slightly drunk. His confusion is a sort of elixir, inducing the kind of delirium described by Jeff Kaye @ 65 (referring to the victim of torture, not to the torturer).

      Bybee writes in the manner of the perfect legal scholar, and he’s so lost in the delusions of his own exactitude than the reader hardly knows where to turn (but you show us the starting-point: go to the footnotes! check the conjunctions!). And though he may be damaged beyond repair, his memo is good for something: it can be taught to every law student in the land as a cautionary example–rather like those horrible car accidents shown to folks convicted of a DUI.

  20. orionATL says:

    adding a couple of thoughts to previous ones:

    – with respect to the misconduct of government officials, history is as important as law in the long run, perhaps more so from an educational standpoint.

    is is more important for us living now to know now what eichmann did and participated in in great historical detail (including from the trial docs), than it is to know the law surrounding kidnapping, trial, and execution.

    eichmann is dead. a great many of those associated with the nazi rampage in europe are dead. the societies and cultures involved in that conflagration have changed so much as to be almost unrecognizable.

    but anyone of us today can read, and will be able to read ‘il the books get burnt, the history of the national socialist party in germany, the history, of which eichmann was a part, which demonstrates for our edification how, 80 yearws ago, a political organization and a nation became collectively psychopathic killers of 20% of their own citizens, and then, through war, of millions of their neighbors citizens.

    if the history ew and her team write here leads to legal sanctions on any of the presidential bureaucrats who brought us torture, so much the better.

    but that the research has been done, the descriptions of the process written up here and elsewhere, is the real victory.

    in the long view, conviction is just not as important as a thorough, accurate description of the reality of how tenet, addington, gonzalez and their proud assistants brought us the folly and the shame of brute torture.

    • bobschacht says:

      What you write is all the more reason that EW needs to compile a set of these threads into a book, because books wind up on library shelves, and on people’s bookshelves, and endures longer than most personal computer archives do. Besides, the way books are printed has a longer life span than most computer hard drives and computer operating systems. The whole book thing may be turning to Kindle, but meanwhile books are still being printed by the million.

      Bob in AZ

      • PJEvans says:

        With comments, too.

        I was thinking that we do need something like a book for this. Maybe CD or DVD, so threads can be linked and you can jump-follow them.

  21. Xboxershorts says:

    Has the INTENT argument for “cause for prosecution” been successfully defended in court? If so, does the argument of “Intent” no extend into American criminal law as a legal precedent? Could this argument now be used to say, get out of a DWI prosecution, owing that there is very rarely “criminal intent” involved in DWI?

    • emptywheel says:

      As bmaz said, no on all fronts–that’s the point he made upthread that you can’t make this argument in the absence of a jury.

      But.

      Isn’t it nice that one of the peopel using this langauge on intent is a super-juror in the 9th Circuit? I really would like people arguing before Judge Bybee to make that point to him–that if his interpretation ofintent were to hold true, than all defendants appealing cases before him would have to be let off.

      • bmaz says:

        That is right, it really is a jury argument; or judge if it is a trial to the court. The term of art is “trier of fact” whether it be jury or judge. Now it is theoretically possible that a set of circumstances could exist where a judge would entertain a morion to dismiss on this issue, but it would undoubtedly be done on grounds other than the argument that a requisite element for charging was not met.

        As to Bybee, heh, the problem is he will be encountered along with two other robes of the 9th that you might not want to piss off. I would hazard a bet that in the wild and wooly 9th, sooner or later, someone will prick him though, likely upon him asking a question that inadvertently steps into the cowpie.

  22. Jeff Kaye says:

    What’s missing from this is the idea that only a set amount of water is poured onto the victim, as it appears open-ended.

    Actually, this is incorrect. They may place a set-amount limit, but what I meant is that limit itself may be changeable.

  23. Xboxershorts says:

    No, the argument has not been challenged in court?

    It’s a damn shame Holder doesn’t have political cover to shoot down that argument. be nice if the ACLU could challenge that before it becomes precedent. If left unchallenged, could it become precedent?

    • bmaz says:

      Precedent, in the legal sense, is a written, published and catalogued appellate opinion. This type of intent argument rarely makes it in that fashion to such a published opinion because it merges into the jury verdict. There are only a couple of outlier opinions touching on this, that is why Yoo et. al seized on the one from the 3rd Circuit so desperately. Their argument cannot become precedent if no one is ever charged in contravention of it, and it appears nobody will be. It may be political precedent for other power centric Administrations, and quite frankly we have another one right now, but not legal precedent.

  24. Jeff Kaye says:

    And only slightly OT, a question I’ve had for some time: did the U.S. teach resistance methods to the muhajadeen, or some of them, during the time they were advising them in the war against the Soviets. I say this since AZ is implicated in teaching such techniques (along with others so implicated). If muhajadeen (and later Al Qaeda) operated such a school, they most likely got the idea from special forces or CIA types they worked with in the 1980s or early 1990s.

    So all the concern over the resistance manual, which does teach what to expect under torture, is it a cover for the fact, or includes the fact that an actual program was transferred to the jihadists. Hence, the need to jiggle what was to be expected (“dislocation of expectation”). Also, this would be another example of “blowback,” i.e., unintended consequences of previous U.S. actions, something which is a real problem for the U.S. in its ever-shifting sets of alliances.

    • PJEvans says:

      I suspect that they did – we were certainly providing them with other kinds of support. (Not that I think they wouldn’t have used torture anyway, but the methods used would probably have been much more direct.)

  25. JasonLeopold says:

    I’ve been re-reading the March 13, 2002 rendition memo prepared for Haynes that Bybee signed two weeks before AZ’s capture and wondering if anyone thinks there could be any connection with this opinion and the drafting of the first torture memo on April 11. I wrote about this a while back but in the context of timing related to AZ’s capture in Pakistan.

    One of the passages I zeroed in on in the memo says:

    To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured. So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer. Even if the foreign country receiving the detainee does torture him.

    It seems like a major stretch and perhaps this is just about rendition and rendition only. But I was curious if it could by any chance represent an early plan for what they intended to do once he was transferred to the black site and if that in any way could refute the assertions that they had to come up with an “alternative” set of interrogation methods because he was not giving up info to Soufan/Gaudin, as was previously stated.

    Also, on the day AZ was captured, March 28, 2002, John Yoo, I believe, prepared what is still a secret legal memo for William Taft at the State Department. I was told the memo likely contained info that about Zubaydah’s transfer to Thailand and the fact that his rendition was considered legal by OLC to appease Powell who objected. But I am unsure about that now.

    • WilliamOckham says:

      I believe that opinion was retroactive justification for rendering al-Libi to Egypt to be tortured. The passage you cite just says “be sure you have a piece of paper that says not to torture the guy (wink, wink)”. That way, it’s ok to guys there when he is tortured so they can hear what he says and evaluate their techniques. By the way, the Egyptians were (and are) known for doing their worst torture after they have what they want.

      • bmaz says:

        By the way, the Egyptians were (and are) known for doing their worst torture after they have what they want.

        But, of course, knowledge of that, prior US refusal to extradite people there, etc. could never be evidence of intent to render for torture. Oh no, never……

    • Jeff Kaye says:

      More CYA advice from Yoo. At least, he tells CIA, don’t make an outright agreement to torture. Here’s your wink-wink procedure. Then he uses a heavy reliance on presidential powers (“even if CAT were applicable…”) to negate the principle of non-refoulement (non-return) enshrined in Geneva, CAT, and other international agreements (such as the protocol on refugees).

      To give Yoo his due, I believe he was only following U.S. policy going back at least a decade by his time. The Reservations to CAT passed by the Senate in the 1990s already made certain limitations, i.e., the non-self-execution exceptions to the text of CAT. Also, the U.S. refused to accept the Human Rights Committee’s (which monitors implementation of the ICCPR) interpretation of article 7 of the ICCPR to include a non-refoulement obligation. [ICCPR stands for International Covenant on Civil and Political Rights]. This has been the U.S. position since at least 1995. (See Margaret L. Satterthwaite’s paper, “Rendered Meaningless: Extraordinary Rendition and the Rule of Law”, Google view link)

      It’s also something that old Jack Goldsmith could agree with, I’d imagine, as he okayed the rendition of aliens from Iraq. Did Goldsmith consider that this was in line with the legal right the Nazis asserted to transfer refugee Jews out of European nations, as, for instance, was done to Anne Frank and her family? (A point raised by Leila Nadya Sadat in an excellent paper on the U.S. policy of rendition.)

      As my article with Hank Albarelli recently showed, however, CIA use of rendition to torture goes back some decades, but until this past decade was something kept in the covert shadows. — Hence, Yoo is doing yeoman’s work for his bosses, who have had the policy he essentially advocates, if not its legalistic form, for a long time now.

  26. oldoilfieldhand says:

    Revised, Reprinted, Relevant:

    Ladies and Gentlemen:

    In this corner wearing three thousand dollar Brooks Brothers suits accessorized with American flag lapel pin, the undisputed heavyweight, no-bid, water-boarding, wall-slamming, sleep depriving, temperature manipulating, child testicle crushing, Constitution shredding, deaf to the history of war crimes, history rewriting, absolutely worst criminal administration in the history of the United States: the George W. Bush and Richard B. Cheney administration!

    In the opposite (literally) corner: Esteemed, pajama clad, Dirty Fucking Hippie blogger and the first and only person to utter the words “blow job” on a nationally televised news program, Marcy Wheeler!

    My money is on Marcy!
    Monthly!

    Thank You Marcy! You are one in a billion!

  27. sanpete says:

    EW

    There is of course no way to retroactively change intent, but neither is there evidence showing there was any need or effort to do that. The memos did cover things that might have already been done as to interpretation of law, but that doesn’t mean they were understood to be equally effective as cover for earlier acts.

    There are many ways to dislocate expectations besides the EITs, but it wouldn’t be surprising if some of the EITs had been used before the opinions. That doesn’t imply any previous intent to cause either severe physical pain/suffering or prolonged mental harm. Sleep deprivation, in particular, wasn’t likely to be regarded as torture regardless of Yoo’s memos. (It had already been ruled not to be torture in Europe.)

    The dates of the reports don’t imply CIA wasn’t already receiving expert advice before the reports.

    The focus on mental suffering over physical was due to the way the law is written. Mental suffering is explicitly defined as “prolonged mental harm,” while physical suffering isn’t defined as prolonged (even though Yoo argued, weakly, that it too must be prolonged). That gave Yoo a possible loophole to work with in regard to mental suffering.

    Keep in mind that disagreeing with you about a moral point doesn’t make someone amoral.

    Regarding numerous comments here about others reading your work to get ideas to use, I think it would be more effective if there were a more strict effort to let facts dictate opinions rather than, as happens so often, letting what one wants to find interpret the facts. I still think you could use a more skeptical eye, and a more skeptical crowd giving you feedback.

  28. sanpete says:

    bmaz

    “Even if all this gobbledy gook was true, and it is most certainly not, Yoo, nor Bybee, nor anybody else, can competently legally make the conclusion there is no specific intent. The whole concept presupposes that the OLC opinionmaker is the prosecutor and jury all wrapped up into one. Before the fact!”

    It’s the job of OLC to determine such things as whether, given certain conditions, the client would be acting within the law. What was done in this case is no different from any other OLC opinion in that regard. Specific intent is an element of the torture statute.

    “Because the root is there is no question in the world but that what was done meets the elements of the crimes”

    Of course there is. In fact, a conviction under the torture statute would be unlikely. Your comments on intent might apply if specific intent weren’t an explicit element of the crime, but it is. It isn’t merely an affirmative defense in this case. The prosecution must prove it. (Usually only general intent is at issue, which is far easier to show.)

    It’s hard to prove specific intent when everyone involved probably believes they intended something else. In particular, the people who did the waterboarding had themselves been waterboarded and would swear up and down that they were convinced, based on their own experience and what they were told by experts, it didn’t cause severe physical pain/suffering or prolonged mental harm. Those in the chain of command would rely on similar claims. Proving the claims false wouldn’t be enough to prove specific intent. It would have to be proved that they didn’t believe them. It might be possible to prove the beliefs weren’t objectively reasonable, all things considered, but it probably wouldn’t be possible to prove they were unreasonable for those who relied on them, and even if it were possible, that wouldn’t be enough for a conviction, by strict adherence to the law. It’s possible a clever prosecutor with a sympathetic judge could persuade a jury to act outside the law, but you shouldn’t count on that (nor would it be proper).

    If you don’t like that, you should be focused on getting better law, not complaining prosecutions aren’t going forward under bad law.

    Taylor’s case doesn’t show anything about this. There’s no problem showing specific intent with him.

    “But when the justice system itself does it, and can do so with impunity because of insider immoral shills like David Margolis, it turns out it really can work I guess.”

    The fact remains that you haven’t shown any error in Margolis’ reasoning.

    • bmaz says:

      I am not going to wast my time with your circular tripe; you have admitted that you don’t know squat about criminal trial process; you should have stuck with that and stayed silent as opposed to confirming your ignorance.

  29. sanpete says:

    “They could not determine that 11 days of sleep deprivation was “safe” unless they went beyond 11 days.”

    Of course they could. What they couldn’t determine would be what happens after 11 days.

  30. sanpete says:

    dcgaffer

    I don’t see why threats can’t lead to prolonged mental harm. (I’m not sure I follow what you’re getting at.)

  31. JasonLeopold says:

    William Ockham @87, 88: thanks for your feedback on the rendition memo. I was looking at it from the timeframe persepective and didn’t think about in the context of al-libo. Regarding your supposition on Horne, I hope to flesh that out a bit more soon in terms of how it came up and was subsequently cited in Bybee Two.

    • PJEvans says:

      It’s pretty clear what you meant. (I think, although my brain was rattled a few minutes ago. 6.9, south of Calexico.)

                • PJEvans says:

                  Northwest Valley.
                  The USGS is now calling it a 7.2 – that’s getting into Serious Shake territory. About the same as they think 1906 was. Gave me vertigo, I have to say.
                  (I want instant-acting Dramamine for this kind of thing. Doesn’t have to last long, but it has to work really, really fast.)

                  • PJEvans says:

                    Also, it appears to be at the south end of the Elsinore fault zone. Triggered lots of small stuff going north through Imperial county (small being relative, but it all looks to be under 5. So far.)

                    • PJEvans says:

                      Given the location of the epicenter, it may be a couple of days before we find out.
                      There was a hefty not-quite-aftershock near Imperial, too. (I think we’re a little closer to Indio being a beach city.)

                    • PJEvans says:

                      Now that there’s a moment-tensor solution up: it’s vertical movement (normal fault), so either the Imperial Valley moved (probably down) or the mountains west of it got a little taller. (I’m not an expert, but I can find the translation through their FAQs.)

  32. tjbs says:

    “Keep in mind that disagreeing with you about a moral point doesn’t make someone amoral.”

    Did Yoo write this?

    Define how this is? What moral points has EW got wrong so far,specifically, just so we can get back on the right track, .

  33. sanpete says:

    bmaz

    It’s completely up to you if you want to subject your reasoning to examination and criticism by people who may not already agree with you. I know you’re accustomed to a collection of aye-sayers and don’t like to be contradicted. I’m happy to leave you to your undisturbed insularity.

    • bmaz says:

      I just choose not to engage with a circle jerk; your commentary is very smooth and yet shockingly disingenuous and worthless. Whatever else you want to build yourself up to be in your own mind, have at it; but my time will not be wasted on your nonsense and I urge others not to waste their time on your trollery either.

  34. sanpete says:

    “I just choose no to engage with a circle jerk”

    Hilarious irony.

    Your repeated inability to see other views as honest is a sure sign of inability to deal with other views openly and rationally. Please yourself (so to speak).

  35. alinaustex says:

    bmaz @84
    Help me understand -would Durham roll out a series of indictments intermittently until all those that could be indicted were ? Or would he build cases against co conspirators and maybe leave the indictments sealed until he was done charging all those involved in the obstruction of justice /destruction of evidence ? What if we was trying to build a RICO regarding criminal conduct without SOL ‘s re homicide and treason -would Durham not then be quiet until the whole RICO shebang was assembled ?( Now pls remember bmaz I am not a lawyer and do not even pretend to be one on the “internet tubes “— so if these are silly questions be kind I may have misplaced my eye protecting goggles…)
    And if US Attorney General Holder has given Special Prosecutor Durham additionally expended scope and investigative questions to assay would these new purviews necessarily be made public ? Has there not been other cases when a Special Prosecutor has been given more and expanded investigative scope without that being made public ? Am I right Durham is acting here as a Special Prosecutor ?

    • bmaz says:

      The timing as to all in one or rolling depends on several factors, not sure I can answer that accurately without knowing more as to what and who he is indicting. RICO is inapplicable, the federal government and its officers are not proper RICO defendants. Would expansions of jurisdiction be made public? In detail perhaps not; however there would be some tell tale signs here and there if there was a major expansion. I have heard rumor there has been minot tweaking but nothing about anything substantive such as you suggest. That said, yes, it could be the case that there is further expansion than has been discussed here (although we have discussed some expansion); I do not think so, but it is possible.

  36. cinnamonape says:

    You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

    So Yoo had actual verbal communications with Jenssen and Mitchell?

    Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard.

    This had to be a reference to a document directly from Jenssen and Mitchell…since they were the ones with “expertise in the feild of psychology and interrogation”. Do we have this document?

    [snip]

    Based on the information you have provided to us, indicating that no evidence exists that this course of conduct produces any prolonged mental harm, we conclude that a course of conduct using these procedures and culminating in the waterboard would not violate Section 2340A.

    Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent necessary to violate Section 2340A.

    So is there actually a document that we do not know of that cites the necessary studies and consultations with others with expertise that we have not yet seen? Do these studies cited actually show that the acts that were perpetrated had been the product of research “alone or in combination” since these were applied to AZ and others as a battery of conditions…and not alone. Any expert worth a degree knows that effects can easily be synergistic, and that combinatorial effects can amplify the trauma. And Yoo seems to realize that he’s ignored this obvious requirement.

    Yoo seems to be careful to avoid suggesting that any “studies” were done on the actual detainees prior to the Memo being drafted…but perhaps a careful reading of these “study memos” could reveal that such “research” was actually undertaken. The limits seem too carefully constructed to meet the events, and I’m dubious that any research generating such data can be found within the field. They had to cite their own, prior, “experiments” in their “study” (Jenssen and Mitchell are not lawyers and their report would likely have not realized the post hoc problems that related to their actions) and this was deftly omitted.

    The critical information is contained in this document which Yoo used to justify the boundaries they had already applied and exceeded without “due diligence”. That’s the smoking gun.

  37. alinaustex says:

    [email protected]
    Would RICO possibly apply to non govermental officials who were acting as contracted employees to the DOD – thinking here of Mitchell and Jeppesen as they conspired to cover up war crimes committed -ie that they figured Soufan had ratted them out for the torture committed in Thailand . And if that were true -and led back to government actors -re Yoo and Addington -even if RICO would not apply to those actors -could it not potentially lead to Yoo & Addington being charged not under RICO -but other criminal statutes that pertain to Lying to Congress , Perjury & Obstruction of Justice ?
    (Now if you come back bmaz and tell me that Mitchell & Jeppesen get the same protection from RICO as does Addington & Yoo its going to be time to take another long anger management walk ..)

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